"I disagree with the decision the court made in my divorce. Can I modify my judgment of divorce?"

"I missed my child support court date and the case went to trial without me. Can I appeal?"

"I settled my divorce case but think I made a mistake. What can I do?"

"I forgot to show the court a very important fact in my custody case. Can I file for a modification?"

"My visitation order has the parties mixed up. How do I correct this mistake?"

Divorce and family law in New York is confusing enough, but very often parties to a divorce get bogged down in procedural issues. Questions such as the above are commonly asked by litigants who for whatever reason, are unhappy with a court order and seek to change it. There are numerous ways to change an order, but not every way is appropriate for every type of court decision. In order to understand which option applies to a particular order, it is necessary to understand how orders are determined.

Types of Orders or Judgments

An order or judgment after a trial when both sides participated

In this case, both sides are present during the trial, testify, call witnesses on their behalf, and present whatever evidence they believe will prove their side of the case. After both sides have made their arguments, the court will render the final decision.

An order or judgment on a default, or an order dismissing a case for failure to appear.

In this case, only one side is present and the court proceeds to trial with one side missing. If the plaintiff fails to appear, the court can dismiss the case. If the defendant fails to appear, the court will hold a one sided trial, called an inquest. Usually, plaintiffs will win these cases since there no defense is presented.

An order or judgment by means of a settlement.

In this case, both sides are present, but instead of having the court make the decision, the parties agree to resolve the case on mutually agreed upon terms.

Means of Changing Orders or Judgments

1. Appeal

An appeal is available only from orders or judgments following a trial where both sides appeared. An appeal is by definition an argument to a higher court that the trial court made a mistake, either in deciding a disputed fact, or in applying the law. Therefore, no new facts may be introduced during an appeal; appellate review is limited to the record made during trial. The appellate court will determine if mistakes were made during the trial, and if so, whether or not these mistakes would have affected the outcome of the trial. The procedure for an appeal is complex, and different rules apply for each of the four departments.

Example:

Mistake of fact - During a child support hearing, both the mother and the father testified they have two children, but the court basis child support on three children.

Mistake of law - During a divorce, the plaintiff alleges irreconcilable differences and the court grants the divorce. Since New York does not recognize irreconcilable differences as a ground for divorce, the court made an error in applying the existing law.

2. Modification

A modification does not seek to change an old order. Instead, it seeks a new order based on a new set of circumstances which occurred since the original order was issued.

3. Motion to vacate default or vacate dismissal

If one party does not appear for a trial and wishes to challenge any order resulting from that default, the remedy is to bring a motion to vacate the default. A motion to vacate a default must show two elements, (a) excusable default in missing the trial, and (b) a meritorious defense or cause of action.

There is no appeal from a default order. However, an order resulting from a motion to vacate a default can be appealed.

4. Motion to reargue

A motion to reargue is similar to an appeal, in that it is an argument that the trial court made a mistake. It differs from an appeal in that it is made before the same judge which heard the case at trial. Needless to say, most motions to reargue are denied. There is no appeal from a decision denying reargument, and the motion to reargue does not extend the time to appeal the original order. Since a motion to reargue alleges the court made a mistake, this remedy is available only after a trial at which both sides were present.

5. Motion to renew

A motion to renew is similar to a motion to reargue in that it is heard by the same judge who heard the case at trial. A motion to renew alleges that a new fact exists which was not presented to the court at trial. In order to prevail, there must generally be a compelling reason why this new evidence was not originally presented, and that this evidence would have resulted in a different decision. Like a motion to reargue, a motion to renew may only be brought after a trial at which both sides were present.

6. Vacating a consent order

To vacate a consent order, the party seeking to vacate the order must bring a motion before the court where the case was heard. In order to prevail, the party must show that the consent order was arrived at by fraud, duress, undue influence, or some other extreme fact.

There is no appeal from a consent order. However, an order resulting from a motion to vacate a consent order may be appealed.

7. Resettling an order

Settling an order has nothing to do with settling a case. Settling an order should be read to mean the signing of an order by a judge. Sometimes a judge will write his or her own orders. More often, a judge will write a decision, or there will be a stipulation of settlement, either in writing or read into the record in open court. In these instances, one side will prepare an order for the judge to sign, giving the other side notice of the proposed order. This order must mirror the courts decision or the agreement between the parties. This is known as settling an order.

If an existing order has a mistake, such as an incorrect name, an arithmetic mistake, or some other ministerial error, the proper remedy is to submit a new order for resettlement (i.e. resigning). Usually, resettlement is done by way of motion.

The New York court requires that divorcing spouses attend a preliminary conference, at which the parties try to decide occupancy of the marital home, daily care for any children and payment of expenses. At the conference, the spouses also discuss exchanging of the following information that includes net worth statements, appraisals of pensions and real estate, interrogatories (formal written questions), and the taking of depositions.

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